Canadians, not judges, must decide

When Sue Rodriguez applied in 1993 for the right to an assisted suicide, her plight as a woman debilitated by Lou Gehrig's disease was not lost on judges. Incapacitated by her condition, she wanted help to end her suffering. But British Columbia's Appeal Court, and then the Supreme Court of Canada, felt they could not strike down the Criminal Code prohibition on assisting or counselling suicide. The blanket ban was necessary to protect the most vulnerable.

On Thursday, the B.C. Appeal Court said the wisdom of the Rodriguez case stands. In overturning the 2012 lower court decision that struck down the ban, it again grappled with the questions at the heart of the debate over a person's right to life, or death. Those issues divide not just courts -- the Supreme Court in 1993 was split 5-4 -- but also Parliament, medical practitioners, people living with incurable conditions, and all Canadians whose opinions on assisted suicide are only superficially tapped by public opinion polls.

One of these questions is how to define the charter's protection of life. Is it simply being alive, or is it the quality of being alive? If a person's quality of life is so degraded it causes unmitigated suffering, can the state reasonably prevent those incapable of suicide from seeking the help of a doctor to die?

The 2012 case was launched by two B.C. women, both dead now. One woman, Gloria Taylor, died of Lou Gehrig's disease in October, eight months after the lower court ruled she had a right to assisted suicide.

That judge found individuals should decide whether their life was worth living, and, if incapable of suicide, should be able to be helped to die. Further, the judge found the Supreme Court in 1993 did not give sufficient consideration to the quality of life -- the ability to enjoy experiences, make decisions, exert control -- when it ruled the need to protect the most vulnerable -- the disabled, the very young, the very old -- justified the criminal ban on assisted suicide.

The Appeal Court upheld the Supreme Court's Rodriguez decision. Further, in its 2-1 ruling, it rejected that the charter protected a person's right to quality of life. Sec. 7 protected life itself, whether for the profoundly disabled, terminally ill or able-bodied.

In dissenting, B.C.'s chief justice said protection should extend to quality of life -- the "potential of human experiences." And he agreed with the 2012 finding that Canada's ban on assisted dying hastens the death of some whose only option is to commit suicide before their disease makes life intolerable.

The complexity of this issue tries the wisdom of the most learned of jurists. Although it upheld the ban, the B.C. court clearly felt it was unfair to some. With the Taylor case headed to the Supreme Court, it urged the court to look at constitutional exemptions for those who are suffering, yet prevented from a physician's help in dying. (Gloria Taylor had been given an immediate constitutional exemption, which was never used.)

The concept of a constitutional pass was raised in the Rodriguez case by then-B.C. chief justice Allan McEachern as a means to protect those few whose rights were unfairly trampled by the ban. It was later supported by dissenting Supreme Court judges -- including Beverley McLaughlin, now the chief justice -- when they wrestled with the Rodriguez case.

The Supreme Court, however, might not hear an appeal in this instance, effectively upholding the law. That would leave Parliament as the only avenue to legalize assisted suicide.

The reluctance to impose a judicial solution was expressed by Allan McEachern in 1993: "I must admit to having profound misgivings about almost every aspect of this case. I can only hope that Parliament in its wisdom will make it unnecessary for further cases of this kind to be decided by judges."

Ms. Rodriguez took her life with the help of an anonymous physician. Winnipegger Susan Griffiths was forced to fly to Switzerland to end her suffering in dignity. Toronto's former medical officer of health, Don Low, last month used his dying breath to plead for changing the law that forces people to suffer needlessly. Quebec has proposed a bill that would allow assisted suicide, directing its Crown attorneys not to prosecute the cases.

The Harper government has said it is not going to change the law, nor begin a national discussion that could consider how other countries have proceeded. This is unfortunate. The tortured history of judicial decisions on assisted suicide shows Canadians, not judges, should decide.

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